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Published May 20, 2020
What if one of your participants exposes another participant to COVID-19? And that participant blames you?
We strongly recommend that sport organizations update their waivers and forms before permitting individuals to participate in the organization’s activities. This blogpost explains why.
BACKGROUND
The first part of this blogpost is a waiver backgrounder/primer. For some sport organizations, this may be the first time you are looking at your waiver in years. Why does it say what it says? Should you use a template? Can a minor sign a waiver? We answer those questions in a helpful refresher of waiver basics.
The second part of this blogpost is about COVID-19. What should your waiver now include? Who needs to sign it? Should you have a separate ‘return to play’ protocol or does a waiver suffice? You can skip ahead to this section of the post if you are familiar with waiver basics and want to know what to do *right now*.
IMPORTANTLY, one general reminder for everyone reading this blogpost is that a minor cannot sign a contract that is not a benefit to them and therefore cannot sign a liability waiver. Also, and equally as important, a parent cannot sign a contract restricting their minor child’s rights (which is what waivers do – limit their right to sue). This means that organizations can have adult participants sign a waiver but must use a different type of document for minor participants, such as an ‘assumption of risk’ form. This form still describes the physical and legal risks related to participation but does not limit the minor’s right to sue. A parent/guardian can sign this form and indicate their consent of the potential harm to their child. For the remainder of this blogpost we have used the term ‘waivers and forms’ to represent both documents.
WAIVER PRIMER
A waiver is a legal contract signed by a participant who, in exchange for the opportunity to participate, gives up their right to seek legal recourse in the event of an injury. This includes injuries that occur as a result of the organization’s negligence or inherent risks associated with the activity. The participant signs a waiver and accepts not only the physical risks of the sport – but the legal risks as well. The participant essentially waives their basic legal right to be compensated for an injury caused by your organization’s negligence.
A waiver should have the following features:
For the sport-specific risks, we recommend that organizations consider all possible risks to the participant. For example, a baseball organization would obviously want to include the risk of a head injury from being struck by a ball – but a basketball organization should want to include the risk of a head injury as well (from a player falling to the court). Organizations with multiple settings (such as diving or triathlon) or with several different pieces of equipment (such as gymnastics or hockey) will need to have an expanded list of physical risks.
Organizations should also consider which organization(s) and individuals are included as part of the waiver. A National organization may want to have a standard waiver that is used by all provincial sport organizations and affiliated clubs and may want to include itself in the definition of which groups are protected. This may cause jurisdictional issues, however, as any claim made on the basis on the waiver should be filed in the National organization’s jurisdiction (rather than in the jurisdiction of the organization administering the waiver).
For clarity, it is not necessary to list the names of any individuals. The name(s) of the organization(s) should be accompanied by a list of roles applicable to the sport and setting (such as “employees”, “Directors”, “officials”, “competition organizers”, etc.).
Assumption of Risk
As we mentioned at the beginning of the blogpost, a minor should not be given a waiver to sign and a parent/guardian cannot sign a waiver on behalf of a minor. Instead, parents/guardians of minor participants should sign an ‘assumption of risk’ form that describes the physical risks related to the participation. This form also serves as ‘informed consent’ that the parent/guardian is aware that their child may be injured as a result of their participation. This form should have the following features:
WAIVERS AND FORMS UNDER COVID-19
We are aware that many insurance underwriters are issuing a ‘contagion exclusion’ that explains that your insurance policy will not cover your sport organization for claims related to COVID-19. This is important information that should prompt a review of your waivers and forms. However, even if you have not received this type of notice, your organization should still include COVID-19 into your waivers and forms as a risk management practice.
Essentially, you should want to be protected from participants filing a claim against your organization should they become exposed or infected. How best to do this? We recommend reviewing the four general strategies for risk management:
Avoid
Avoiding the risk would involve not having any programs or services in which participants could interact with one another and/or with the same equipment or facilities. This would not be practical or desirable for most sport organizations.
Reduce
Risk reduction strategies include the ‘return to play’ protocols that many organizations are currently implementing. Some of these protocols will be sport specific but others will be common throughout our sector. For example, soccer is contemplating eliminating the ‘throw-in’ from the sidelines so that players do not need to touch the ball. Badminton and tennis are not resuming ‘doubles’ competitions to ensure physical distancing. All indoor sport facilities are taking steps to provide additional hand sanitizer and to increase disinfection of common touch-spots (like door handles).
In addition to the ‘return to play’ guidelines, we recommend introducing a ‘Declaration of Compliance’. This document would be signed by any individual who enters your facility and/or who participates in your organization’s programming. Individuals younger than the age of majority would have a parent/guardian sign the document on their behalf. This Declaration does not replace a waiver or assumption of risk form. It is a risk reduction strategy and not a risk transfer strategy.
In general terms, this Declaration should state that the individual pledges that they have not been exposed to COVID-19 in the past 14 days and they are taking reasonable steps to avoid being exposed. The Declaration should also say that your organization reserves the right to remove the participant from the facility or from your programming for any reason.
The Declaration of Compliance is a risk reduction strategy that, ideally, reduces the number of people participating in your programming who have been exposed to COVID-19. We recognize, of course, that some individuals may be untruthful, and others may be unaware of potential exposure – which is why a waiver for adult participants (to transfer the legal risk) is still necessary.
Transfer
Insurance is one way that your organization will transfer its legal risks. But, as we mentioned above, we are aware that some insurance underwriters have a ‘contagion exclusion’ which leaves your organization at risk for claims related to COVID-19. This is why updating your waiver is vital.
As we mentioned at the beginning of the blogpost, a minor cannot sign a contract and therefore cannot sign a liability waiver. Also, parents/guardians cannot sign agreements limiting their child’s rights. So, a sport organization that has both adult and minor participants should have two documents – a waiver (for adult participants) and an assumption of risk form (for minor participants). Both documents should be updated to include the risk of COVID-19 exposure and infection.
The waiver (for adult participants) should be further updated to indicate that the participant will forever release and indemnify the organization from any action or claim related to the participant being exposed to COVID-19, including due to situations that were caused by the organization’s negligence.
Retain
Some of the risks related to COVID-19 must be accepted if your organization wants to continue to operate. But with the proper risk reduction and risk transfer strategies, the remaining risk will ideally be low.
ONLINE PARTICIPATION
We recognize that some organizations (like the sports with regular one-on-one contact) are still unable to return to in-person participation. Many organizations have continued limited operations in an electronic setting. We wrote about some communication challenges last month in this blogpost. But, importantly, an organization that sanctions activities online (like a training course or workshop) should be updating their waivers and forms too – to include the risks related to online participation.
Although there may not be physical risks from participating in an online activity, there are other different types of risks. For example, increased privacy issues, hacking, technological problems, and conduct violations that are specific to electronic settings. Waivers and forms should be updated to include these risks.
Additionally, organizations should want to indicate that they are not liable for damages if participants injure themselves as a result of following instructions from any sanctioned online training. Participants are solely responsible for the equipment they use and for selecting an appropriate training area.
CONCLUSION
Organizations want to resume operations, want to protect their participants, and want to protect themselves from the legal risks related to COVID-19. This protection comes in the form of risk reduction and risk transfer strategies. These strategies include:
We are happy to answer any questions about this blogpost – and happy to work with your organization to review or update your waivers and forms.
Steve Indig- SJI@sportlaw.ca
Kevin Lawrie - KRL@sportlaw.ca
